Opinion
6 Div. 875.
December 15, 1927.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
London, Yancey Brower and Frank Bainbridge, all of Birmingham, for appellant.
Error without injury will not justify the granting of a motion for a new trial. 20 R. C. L. 227; M. O. R. Co. v. Brassell, 188 Ala. 349, 66 So. 447; Ewart Lbr. Co. v. American Cement P. Co., 9 Ala. App. 152, 62 So. 560.
D. G. Ewing and Leigh M. Clark, both of Birmingham, for appellee.
It is error for the trial court, upon proper motion being made, to refuse to qualify the jury with reference to their interest in or connection with the indemnitor of the defendant. Citizens' Co. v. Lee, 182 Ala. 561, 62 So. 199; Beatty v. Palmer, 196 Ala. 67, 71 So. 422; U.S. Co. v. Warner, 198 Ala. 595, 73 So. 936; Clinton M. Co. v. Bradford, 200 Ala. 308, 76 So. 74; Munson S. S. Line v. Drayton, 17 Ala. App. 619, 87 So. 218.
Since our decision in the case of Citizens', etc., Co. v. Lee, 182 Ala. 561 (30), 581, 62 So. 199, the rule has been firmly settled in this state that the plaintiff is entitled, upon his seasonable and proper motion, to have the jurors from whom the trial jury is to be selected qualified as to their relation to, or interest in, any insurance company which would be liable, in whole or in part, for any judgment that might be rendered against the defendant. Beatty v. Palmer, 196 Ala. 67, 71 So. 422; United States, etc., Co. v. Warner, 198 Ala. 595, 73 So. 936.
The denial of plaintiff's motion in the instant case — whatever reservations were made as to future action contingently — was erroneous and presumptively prejudicial, unless it can be said, as a matter of law, that the verdict rendered for plaintiff was for as much, substantially, as any disinterested and unbiased jury could reasonably allow. This, on the evidence in the record, we would be unwilling to assert.
The question of reversible error, vel non, turns, therefore, upon whether the affidavit of the indemnity company's president was sufficient to establish the disinterested status of the jurors; and whether such a method of proof, emanating from the party liable, with an interest to serve, and without the opportunity of cross-examination, is to be accepted and regarded as a fair and satisfactory substitute for the approved method and practice of examining the jurors themselves in open court.
No doubt the trial judge concluded to the contrary, and we think his conclusion was correct. The denial of the right to qualify the jurors in advance of the trial by an examination of the jurors themselves in open court cannot be cured by the ex parte affidavit of an officer of the insurance company affirming that the several jurors were not in any way related to, or interested in, the company. To approve that practice as a substitute for the right to qualify would be a practical denial of the right, and in these matters it is safer, and more simple and satisfactory, to pursue the regular method.
We think the error of the court in denying the original motion was a sufficient ground for granting a new trial, and the judgment in that behalf will be affirmed.
Affirmed.
All the Justices concur.